Science and Technology Law Commons^™

Star Wars: The Battle To Protect The Rights Of Publicity Of America’S Astronauts, Robert C. O’Brien

UC Law Science and Technology Journal

This article examines the efforts by astronauts to establish and protect their publicity rights. Part I summarizes the development of the right of publicity generally.

Part II discusses the development of that right within California jurisprudence. Part III analyzes the arguments offered against astronauts who have been compelled to protect their publicity rights in court. Finally, Part IV addresses practical concerns arising from the prospect of facing off against an astronaut (or his or her estate) before a jury. This article concludes that an astronaut generally will be able to successfully invoke right-of-publicity laws against companies that use the astronaut’s …

Anda Reverse Payments And The Post-Actavis Landscape, Michele M. Kang

UC Law Science and Technology Journal

Pharmaceutical companies spend much of their time and resources in conducting clinical trials for developing new drugs. Under the Hatch- Waxman Act, generic drugs can refer to the same clinical trials that the initial pharmaceutical companies have done, if they prove similarities in the biological makeup of both drugs. A trend that has developed in response to the Hatch- Waxman Act is that pharmaceutical companies have been paying off generic companies not to enter into their market — this is referred to as a reverse payment patent settlement. While proving to be beneficial to the pharmaceutical industry, reverse payments create …

Spotting Software Innovation In A Patent Assertion Entity World, Garry A. Gabison

UC Law Science and Technology Journal

This paper looks at the relationship between venture capital (VC) funds and patent assertion entities (PAEs). These two types of entities rely heavily on patents most particularly in the software industry. The paper analyzes this relationship and argues that VC funds have fed into the PAE phenomenon. This paper also argues that PAEs have impacted how VCs behave. It offers an empirical analysis and finds that as PAEs became more active, VCs provided more funds to the companies they backed. This paper closes by discussing what VCs have done and could do to address PAEs and their activities.

Online Consent And The On-Demand Economy: An Approach For The Millennial Circumstance, Jessica L. Hubley

UC Law Science and Technology Journal

The on-demand economy emerged over the last decade as a new commercial model facilitated by the laws of online contracts. This article focuses on four specific categories of web-based services with common characteristics: (1) Marketplaces, (2) Contractor Marketplaces, (3) Gig Platforms, and (4) Service Platforms. Categorizing on-demand companies in this way highlights how the law is lagging behind technology in a near-calamitous fashion; existing classification rules address a black and white dichotomy (employee vs. contractor) where these marketplace realities warrant a more nuanced approach. This article discusses how traditional rules surrounding worker classification provide, or fail to provide, clear guidance …

Idea Theft: Frivolous Copyright-Lite Claims, Or Hollywood Business Model?, K. J. Greene

UC Law Science and Technology Journal

Two facts regarding idea theft in the creative context are undeniable—first, that idea misappropriation claims against Hollywood studios and television producers are rampant, and second, that the hodge-podge legal regime surrounding idea submission claims is in disarray. Institutional entertainment industry players, such as major Hollywood studios, dismiss idea theft claims as fake and frivolous, a kind of “copyrightlite” claim brought by unsuccessful wannabe writers and producers. In contrast, non-established creators seeking entry to the elite and lucrative world of Hollywood tell another tale—that of an industry that relies on the creative ides of outsiders, and fleeces idea submitters as a …

Trolling For An Npe Solution, Jared A. Smith, Nicholas R. Transier

UC Law Science and Technology Journal

An all-out war is being waged against patent trolls in every corner of the government. But why? To answer that question, this note considers a wide range of laws, rules, decisions, and other measures being offered up as a solution to the “troll problem.” In doing so, this note seeks to identify the potential issues with various proposed “solutions,” including their impact not only on patent trolls, but also, arguably more importantly, on the patent system as a whole. Finally, this note concludes with a set of recommendations meant to combat the most insidious patent trolling tactics, while protecting the …

Developing Drop Discipline: Training And Testing Operators Of Small Unmanned Aircraft Systems, Henry H. Perritt Jr., Eliot O. Sprague

UC Law Science and Technology Journal

This is the third in a series of articles about drones by the co-authors. The first, Drones, introduces the subject and explores the technologies that makes microdrones so useful and so inexpensive. It provides an overview of technological, economic, political, and regulatory issues that the second article and this one explore more deeply. The second article, Law Abiding Drones, argues that the character of microdrones justifies simplified regulation as consumer products, with automated flight control and safety systems that make flying them easy, compared with airplanes and helicopters. This article focuses on the question of operator qualifications. It does not …

The Intersection Of Patents And Trade Secrets, Michael R. Mcgurk, Jia W. Lu

UC Law Science and Technology Journal

An old retort in politics is “You’re either a Democrat or a Republican!” Likewise, the counterpart retort in Intellectual Property for companies back in the day was “You’re either a patent company or a trade secret company!” Patents and trade secrets are the only two forms of intellectual property that protect information—patents protect patentable (innovation) information, while trade secrets can protect patentable information and any other information providing economic value to the holder. In fact, it is not uncommon for patents and trade secrets to protect the same information. However, the bodies of laws governing each are far from similar. …

Are Prior Art Citations Determinative Of Patent Approval?: An Empirical Analysis Of The Strategy Behind Citing Prior Art, James H. Richardson

UC Law Science and Technology Journal

This paper analyzes the impact of prior art citation by inventors on examiner citations and upon the time to patent approval. Using two discrete datasets comprised of extensive filing data, this analysis presents conclusions regarding the impact of applicant citations on filing, and uses these conclusions to extrapolate to a broader analysis of filing strategy with respect to prior art citation. Specifically, applicants who systematically under-cite prior art stand to benefit. Though the time from filing to approval does not vary greatly with applicant citations, the time spent by the examiner on filling in prior art does. As such, applicants …

Distributive Injustice And Organ Transplant Waitlists, Huma Zarif

UC Law Science and Technology Journal

Organ transplantation has been a life-saving treatment option for many who require this intervention due to organ failure. However, there are many legal and ethical considerations regarding allocation of this limited resource. Some of these issues were brought to the forefront in the highly publicized cases of Steve Jobs, Sarah Murnaghan, and Javier Acosta. These were instances where it appeared that in getting their transplants, these individuals obtained an unfair advantage over others on the waitlist. When a resource is as scarce as an organ for transplantation, equitable distribution policies are integral to a just allocation system.

Fair Use In The Classroom; A Conundrum For Digital User-Generated Content In The “Remix” Culture, Samantha Von Hoene

UC Law Science and Technology Journal

The age of digital media has broadened the ability of consumers to access, create, manipulate and reproduce content with great ease and speed. With these advances in technology comes the growing trend of user-generated content, which involves a wide variety of media that is created by consumers and end-users. While this user-generated content has allowed creativity to flourish, and has in part led to the creation of the “remix culture,” many copyright concerns have arisen from this growing trend.

Neutering Net Neutrality: What Verizon V. F.C.C. Means For The Future Of The Internet, Alexander Hurst

UC Law Science and Technology Journal

Few things are as ingrained in Americans’ daily lives as the Internet. A one-stop source for information, communication, and entertainment, the Internet has, for many, supplanted the old media that came before it such as books, telephones, fax machines, and television. Yet the Internet is an incredibly nebulous thing, a network of various private networks the regulation of which is currently even more amorphous. A recent decision of the D.C. Circuit, which has national effect, has rendered the traditional model of the Internet subject to upheaval. The fundamental principle in question, so-called “net neutrality,” stands for the idea that Internet …

Using Gatt-Trips To Improve Development Opportunities: A Proposal For Central America, Cecily Anne O’Regan, Patrick T. O’Regan

UC Law Science and Technology Journal

Given the geographic and natural resource advantages that countries in the Americas have which will likely shape the business and trade climate in the 21st century, accelerating the development process for developing countries in the region takes on new significance for all involved. This work assesses ways in which Central American countries can use compliance with GATT-TRIPs and TRIPs-plus bilateral agreements to promote their economic development. The first section describes current approaches to IP protection in Costa Rica and El Salvador. The final section goes on to propose regional strategies and legal changes, which are GATT-TRIPs compliant that could potentially …

An Insight Into The Apparel Industry’S Patent Troll Problem, Ashli Weiss

UC Law Science and Technology Journal

Patent trolls have increasingly targeted the end users of patent-encumbered technology rather than suing the companies that created the allegedly infringing products themselves. Apparel companies provide a useful example of the predicament faced by a variety of similarly situated, nontechnology-oriented companies targeted by troll litigation. As high-profile end users of a variety of commercial technologies, apparel companies have proven to be popular targets for troll litigation. This article examines the apparel industry’s patent troll problem through the lens of historical context, in order to describe how nontechnology companies expose themselves to liability by becoming dependent on third-party technology. It then …

The Conflict Between The Fda’S Pre-Launch Activities Importation Request Program And The Hatch-Waxman Act, Alex Cheng, Matthew Avery

UC Law Science and Technology Journal

In 2008, the Food and Drug Administration (FDA) implemented the Pre- Launch Activities Importation Request (PLAIR) program. The FDA exercises its enforcement discretion under the guise of the PLAIR program to permit drug manufacturers to import unapproved drugs into the United States so the manufacturers can expedite their commercial launches when they finally receive official FDA approval. But the ability to import unapproved finished drug products into the United States ahead of anticipated FDA approval conflicts with certain provisions of the Hatch-Waxman Act that permit brand-name companies to use permanent injunctions to prevent the importation of generic equivalents of their …

Mental Health Parity: The Patient Protection And Affordable Care Act And The Parity Definition Implications, Suann Kessler

UC Law Science and Technology Journal

At least twenty-eight percent of American adults suffer from a mental or addictive disorder. However, even today, health insurance coverage for mental health services differs drastically from that of other medical services. Nonetheless, although it has yet to achieve parity with other medical services, health insurance coverage for mental health services has improved over time. Because the recent enactment of the Patient Protection and Affordable Care Act (“PPACA”) appears to have filled the parity gaps left by the Mental Health Parity and Addiction Equity Act of 2008, many claim that mental health parity has finally been achieved. While the PPACA …

Normative Avoision: Revising The Copyright Alert System To Circumvent Normative Backlash, Timothy L. Yim

UC Law Science and Technology Journal

Content rightsholders in the film and music industries previously spearheaded a legal campaign that, though highly successful in the courts, has resulted in significant normative backlash and overall has been counterproductive to their intended goal of increased copyright enforcement. In July 2011, when these rightsholders signed an agreement with five major national internet service providers to create the Copyright Alert System (“CAS”), a new and entirely private mechanism for copyright enforcement, they seemed poised to make that same mistake again. However, in a prime example of “normative avoision,” content rightsholders have finally taken note of the normative consequences of their …

What Can Medicine Teach The Social Sciences?, Lee Mcintyre

UC Law Science and Technology Journal

In a field as slow to change as the law, it is often helpful to inject fresh perspectives from other disciplines. As different as legal analysis might be from that found in the medical and social sciences, they are all ultimately concerned with the pursuit of objectivity. Furthermore, in each of these fields, the pursuit of academic and practical goals are permeated and influenced by the values of those that seek to achieve them. Indeed, both the law and the social sciences in particular are fundamentally concerned with finding ways of distilling logic and order from the complexities of human …

The E-Books Price Fixing Litigation: Curious Outlier Or Harbinger Of Change In Antitrust Enforcement Policy?, Evan D. Brewer

UC Law Science and Technology Journal

In 2012 the Department of Justice brought suit against Apple and five major US publishing houses for conspiring to fix the price of e-books. The complaint contained many detailed factual allegations, including the sort of high-level executive collusion commonly seen in criminal price fixing cases. The charged conduct, horizontal price fixing, is per se illegal under the Sherman Act and among the “hardcore” violations that under Antitrust Division policy merit criminal charges. Yet instead the government brought a civil case against Apple and the publishers. This note analyses the details of the Antitrust Division’s case, viewed in light of current …

Three-Parent Ivf And Its Effect On Parental Rights, Padmini Cheruvu

UC Law Science and Technology Journal

Three-parent in vitro fertilization (“IVF”) is a controversial procedure that offers the possibility of preventing the inheritance of genetically caused mitochondrial disease, sparing future generations from a range of incapacitating conditions. Due to the use of a controversial form of cloning technology, the procedure is currently banned in both the United Kingdom and the United States. If the procedure was to be made legal in the United States, it is unclear how the states would legally view the donor parent. This note argues that the rights that donor parents in three-parent IVF procedures receive will most likely parallel the rights …

Should We Award Mr. Sugano A Valid Patent: Rethinking The Federal Circuit's Rigid Written Description Requirement In Gene Patents, Ning Bao

UC Law Science and Technology Journal

Whether a separate written description exists in 35 U.S.C. § 112 of the United States Code has been the subject of much debate. In Ariad v. Eli Lilly, the Federal Circuit attempted to settle the issue. An en banc panel consisting of eleven judges decided the case; and the court also received twenty-five amicus briefs. The arguments encompassed statutory interpretation, legal precedence, and policy concerns. The nine-judge majority favored a separate written description requirement, while Judge Rader and Judge Linn strongly opposed the majority decision. Whether the holding in A riad is "correct" is beyond the scope of this note. …

Titans And Trolls Enter The Open-Source Arena, Debra Brubaker Burns

UC Law Science and Technology Journal

Open-source software has become a prominent part of the software industry, due in part to its applications in mobile devices, online social networks, and cloud computing. As a result, the open-source community is an increasingly attractive litigation target for patent trolls and titans. While in the past the open-source community focused primarily on ensuring license compliance, it now must reach beyond open-source licensing agreements and vigilantly employ multiple current or as yet untested defensive maneuvers to withstand the threats of patent lawsuits.

Copyright Protection For Search Results: Hiybbprqag, Mbzrxpgjys, And Indoswiftjobinproduction, Joshua L. Young

UC Law Science and Technology Journal

Since the digital revolution, it is estimated that the sum of all information in the world doubles every two years. Yet information is only useful to the extent people can effectively access and utilize the information they need. The search engine Google has met this challenge better than any of its competitors and as a result has become one of the most profitable companies in the world. In 2010, Google began to suspect that a competing search engine, Bing, was copying Google's search results in order to gain a competitive edge. Yet, despite the immense financial implications at stake, whether …

Afterlife In The Cloud: Managing A Digital Estate, Jamie P. Hopkins

UC Law Science and Technology Journal

This digitalization of wealth has challenged the effectiveness and efficiencies of traditional estate planning mechanisms. As such, modified estate planning techniques and the development of digital estate planning services have created serious privacy, security, and efficiency concerns for the transfer and management of digital estates. The creation and adjustment of digital estate planning solutions are required to ensure the privacy, security, and proper disposition of digital estates. However, because the problems facing digital estate planning are extremely complex, a combination of legislative action, creative lawyering, and improved online service agreements are required to effectively and efficiently transform estate planning into …

The Sum Of The Parts Is Greater Than The Whole: Why Courts Determining Subject Matter Eligibility Should Analyze The Patent-Eligible And Unpatentable Portions Of The Claim Separately Instead Of Treating The Claim As A Whole, William J. Casey

UC Law Science and Technology Journal

For years, uncertainty has plagued the patent world regarding how to determine if claims are patent eligible. Recent Supreme Court decisions addressing patent eligibility, while resolving the eligibility of the claims before the Court, have not provided a general methodology for lower courts and the Patent and Trademark Office to follow. This note proposes a general method of analysis to determine patent eligibility. First, rather than treat the claim as a whole, the court or examiner should divide a claim into unpatentable and patent-eligible portions. Then the court or examiner should conduct a three-factor analysis to determine if the claim …

E-Discovery In The Cloud Era: What's A Litigant To Do, Cindy Pham

UC Law Science and Technology Journal

With great technology, comes great responsibility. In an era with increasing use and dependence on cloud computing, e-discovery is becoming increasingly complicated and expensive. These difficulties are further magnified when litigants and their attorneys are unfamiliar with how cloud technology works, and become lost trying to navigate through e-discovery rules in this new context.

Unprepared litigants do not understand how cloud technology can vastly extend the scope of discovery, and in turn, their preservation and production duties. This note provides an extensive background of cloud computing and details the problems litigants are encountering during cloud-based document discovery. This note further …

Informed Buyers Of E-Discovery: Why General Counsel Must Become Tech Savvy, John Didday

UC Law Science and Technology Journal

Corporate counsel needs to understand big data, now. Civil discovery is getting bigger and more expensive by the day, but the legal field has been slow to find a solution. Too often, the huge data sets corporate litigants exchange before trial become a burden instead of an asset. Computer scientists have developed methods to aggregate and search large stores data effectively, but the legal system is intransigent; unless a leader brings technology to the law, litigation will only get slower and more expensive. I propose in-house counsel lead the way to implementing big data solutions by becoming informed buyers of …

Electronic Medical Records And E-Discovery: With New Technology Come New Challenges, Jeffrey L. Masor

UC Law Science and Technology Journal

Electronic medical records have created new challenges for lawyers because all of the digitized information is printed on reams of paper during discovery. This makes the record both voluminous and difficult to interpret. This Note examines potential solutions that would allow lawyers to view electronic medical records in a digital format while preserving patient privacy. Two solutions are explored: 1) accessing the electronic medical record remotely by adapting tools that are already in place for doctors to remotely access patient records and 2) detailing a method to export an electronic medical record to a common, interoperable format.

Akamai: A Cure For Medical Process Patent's Prometheus Ailment, Joanna Liebes

UC Law Science and Technology Journal

Despite all of the industry and academic focus on the recent Supreme Court case Mayo v. Prometheus, without the Federal Circuit's Akamai v. Limelight Networks decision, many medical process patents may be worthless. This note discusses the problem of subject matter eligibility for medical process patents after Mayo v. Prometheus, as it relates to the likelihood of infringement of those patents. After the Mayo decision, practitioners are attempting to redraft claims to ensure they contain patent eligible subject matter, but in doing so, they may be drafting claims that are impossible to directly infringe. This note proposes that the Akamai …

A Conversation On Judicial Decision-Making, Robin Feldman

UC Law Science and Technology Journal

Recent Supreme Court cases reveal a fascinating conversation across time between the Court and the Federal Circuit. It is a conversation not just about the nature of patents, but also about the nature of judicial decision-making. The conversation implicates how one goes about crafting the rules within an area of law, what approaches are tenable, and what is the appropriate relationship among the various courts. The conversation has the feel of an exchange between a teacher and a student, or perhaps between an adult and an adolescent. As with any conversation of this kind, much of the talking is done …